Court File and Parties

COURT FILE NO.: 43542/20 DATE: 2020-11-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Navdeep Dhanda, Applicant AND: Navtej Dhanda, Respondent

BEFORE: Kurz J.

COUNSEL: Nav Shokar, for the Applicant Harjot Dhaliwal, for the Respondent

HEARD: October 22, 2020 – in writing

ENDORSEMENT

Introduction

[1] On October 13, 2020, I granted the Respondent father leave to bring an urgent motion to restore what he said was the status quo of 50/50 shared parenting in the face of the Applicant mother purportedly unilaterally withholding his parenting time. That finding was subject to the discretion of the judge hearing the motion.

[2] I heard the motion on October 20, 2020. Having heard the argument, I informed the parties of the substance of my order. I promised to release my endorsement on a timely basis and apologize for the delay and failure to do so.

This Motion is not Urgent

[3] I informed the parties that I was not satisfied that this motion is urgent. While the father claimed that his access was being unilaterally withheld by the mother that claim was not accurate. Similarly, his claim to an equal, shared parenting status quo is at the very least, debatable. Rather, the mother was insisting on a return to the pre-April 2020 status quo of the father’s alternate weekends and a written confirmation that the father would not change that arrangement without her agreement or a court order. In fact, the mother made clear that she wished the father to exercise access, that she would cooperate in expeditiously bringing this matter before the court and that any weekend access to which he agreed (as opposed to equal shared parenting time) would not be regarded as a concession or a new status quo.

Duty of Candour

[4] In Haaksma v. Taylor, [2020] O.J. No. 1861, I pointed out that there is a duty of candour in counsel’s correspondence with the court, seeking leave to bring an urgent motion. I wrote:

28 Thus, even though the process of determining urgency for the purpose of leave to bring an urgent motion is not a motion, there is still a duty of candour that attaches to it. That much is made clear in Commentary 2 [of the Law Society of Ontario’s Rules of Professional Conduct]. While the process of determining urgency for the purpose of leave to bring a motion does not lead to a substantive order, it does entitle a party to litigate in the face of the court's suspension. While open access to the court is and should generally be a basic right of all citizens, it is necessary circumscribed in the limited circumstances of this pandemic and the court's suspension. Courts, litigants and the public are entitled to assume that the communications made with the court in these difficult times, seeking what is, for this limited time, a form of exceptional relief, will meet the duty of candour described by the RPC.

[5] I cannot find that that duty was met here. However, as I advised the parties, I have now heard the parties’ arguments and find it appropriate to make an interim parenting order. I have also arranged a conference date for the parties.

Background

[6] The parties were married on December 17, 2011 and separated on July 16, 2019. They have two children, A, aged six and J, aged three. There is no previous parenting order.

[7] The mother is a teacher and the father is a project manager for Whole Foods in Texas. The mother says that she was always the children’s primary caregiver while the father frequently travelled for business. The father says that he lost his job in March 2019 and then became the primary caregiver of the children, although the maternal grandmother lived in the matrimonial home and assumed childcare responsibilities. The mother says that her mother moved in with them because of his non-involvement with the children, even when he was unemployed.

[8] On July 9, 2019 the mother and children moved to the home of her parents in Hamilton. The father never contested the move. Two months later, in September 2019, the father accepted his present job with Whole Foods. He moved to his new place of work in Texas, returning to Ontario on alternate weekends to exercise his access. During the first eleven months of the parties’ separation, the father exercised alternate weekend access. In his answer in this proceeding, he conceded the children’s primary residence with the mother, at least subject to review when he returned to Ontario full-time.

[9] The father continued with alternate weekend access until the pandemic hit, making cross-border travel impossible. The father returned to Ontario on April 2, 2020 and after a two-week self-quarantine, demanded equal parenting time. The mother refused that demand but did agree to extended access, which occurred as follows:

April one week May two weeks June two weeks (three weeks were offered) July two weeks August one week

[10] The father ultimately obtained the consent of Whole Foods to work in Ontario for the remainder of his Texas employment contract. He returned to Texas in August 2020 to clean out his apartment and then returned to Ontario to again self-quarantine for two weeks. He did so at a cottage. The mother says that that he never called the children during the week that he was in Texas and only called the children on the last day of his two-week self-quarantine in Ontario. She also says that he did not contact the children during the week before school started. The father does not deny these claims.

[11] The father originally chose to live with this parents while exercising his increased parenting time. He ultimately chose to move out on his own.

[12] The father’s counsel states that the parties agreed to an equal shared parenting arrangement after the father returned to Ontario. But she was unable to refer to any proof of that alleged agreement.

[13] When September and school arrived, the mother sought to return the access to its former alternate weekend schedule. That was the pre-COVID status quo. The father refused to agree. He claimed that she was changing the “status quo” of his alternate week parenting time over the past 3 ½ months.

[14] However, the mother says without contradiction that the father missed half of his supposedly equal parenting time during the 3 ½ months he claimed to have established a new status quo.

Status Quo

[15] For the purpose of this motion, I find that the status quo was the mother’s primary care of the children. This was temporarily changed for a time after the father returned from Texas and while schools were closed. However this temporary arrangement, like many similar COVID-19 arrangements, did not create a new status quo.

The Father Should Have Sought a Case Conference

[16] The father claimed that the precipitating event for his urgent motion was the mother’s denial of his access in the hope of creating a new status quo. However, she says, and her lawyer’s correspondence confirms that she just wanted his written reassurance that he would return the children after his weekend access. At one point, he had refused to return the children because three-year old A was crying about returning to his mother. The mother did not want him unilaterally assuming a new 50/50 parenting arrangement.

[17] The mother was clear that an agreement to his weekend parenting time would not be construed as acquiescing to her terms. Nonetheless, the father refused, choosing instead to seek an urgent motion from this court. Access was ultimately reinstated without the assistance of the court, further obviating the alleged urgency.

[18] The father would have done better to seek a case conference at an earlier date. He says that the court did not offer case conference dates until mid-December. But as Wildman J. instructed counsel in Rosen v. Rosen, 2005 CanLII 480 (ON SC), [2005] O.J. No. 62 (S.C.J.), at paras. 5, 7-9, he and his counsel could have taken further steps to obtain an expeditious date or to resolve the issues before bringing a motion. He could have brought a 14B motion or written to the court, seeking an early case conference date, which could have avoided the necessity of this motion.

[19] Each party makes allegations against the other’s parenting. The father claims that the mother suffers from depression while the mother claims that the father has difficulties parenting alone (without his parents). She adds that he spurs the children on to support his position in this litigation. These issues may be determined with the assistance of a mental health clinician.

Assessment

[20] The parties have agreed to a s. 30 assessment. Their counsel were to attempt to agree to an assessor within one week, failing which they were arrange a conference call before me to select the assessor. Not having heard from them, I assume that they reached an agreement on an assessor. Nonetheless, they should obtain a consent s. 30 order at the case conference, so that the assessor’s report is automatically admissible in evidence.

Children’s Primary Residence with the Mother

[21] The children shall, on an interim basis, primarily reside with the mother. She may make all major decisions for the children after consultation with the father. She may sign all requisite consents for the children’s health, education and recreation. Each party may make day-to-day decisions for the children for the time that they are in the party’s care.

Father’s Parenting Time

[22] During the hearing of the motion, I informed the parties that I would order that the children shall be in the care of the father on alternate Fridays, from after school/daycare to the following Sunday at 6 p.m. and each Wednesday, overnight, with pick up and return to school/daycare. The parties shall deal with the issue of holiday access upon the return of this matter.

Case Conference

[23] The parties will attend a case conference in this matter on November 26, 2020 at 11:30.

Costs

[24] At the time of argument of the motion, I informed the parties that I fix costs of this motion at $10,000, payable by the father to the mother within 30 days of the date of the motion, or November 22, 2020. It is an amount that I find to be fair reasonable and proportionate in light of the facts that this motion was not urgent, that the mother was willing to agree to an expedited case conference, and that she was essentially successful.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Date: November 13, 2020